The Shadow Travel Ban

The media has done a great job of covering the travel/refugee ban but less attention has been paid to the story of how many from around the world have been shut out of coming to the US for years (with the problem is getting much worse under this Administration).

I’m talking about the unfettered discretion consular officers have to deny visitor visas, student visas and several other visa types. Some of the denials are due to security and criminal issues. But most are due to INA Section 214(b) which allows an officer to deny the visa to anyone the consular officer deems likely to ignore the terms of their visa (such as by overstaying or working illegally). In some parts of the world, the vast majority of applicants for visas to the US are denied for this reason.

In some parts of the world, the vast majority of applicants for visas to the US are denied. Those would mostly be in developing countries and even people who can demonstrate solid incomes and strong ties to their countries are denied after getting interviews lasting no more than two or three minutes. Individuals go in with meticulously documented applications and should be easily approvable, but walk out of their interviews with not a single document being reviewed and questions asked that hardly allow an officer to get a good sense of the applicant’s story.

While no one at the State Department will ever admit to profiling, that’s essentially what they’re trained to do on a daily basis as they move through the applicant lines. A lot of immigration lawyers who read my blog are probably nodding their heads in agreement at this point. It’s nothing new and in my 27 years of doing this kind of work, this has always been the case.

What is new is the recent memo from Secretary of State Tillerson which essentially blesses the concept of profiling albeit for security reasons. Carole Morello and Erin Cunningham do a good job explaining the new memo in The Washington Post.

But we’re also seemingly seeing a rise in the old-fashioned 214(b) denials. Today, Vox’s excellent immigration reporter Dara Lind has an important story up aptly titled “The Art of the Denial” which talks about this issue.

For those who think that this is all good, a few reminders. First, tourism to the US is already taking a hit from all of the headlines about CBP denials and blatant harassment of visitors coming in at US airports (sorry, but asking passengers what they think of Trump or telling an entrant that they’re just “making America great again” can only be described as harassment). Wednesday, USA Today reported that tourism could take an $18 billion hit as a result of the changes ushered in by President Trump.

We also have seen reporting that America’s universities are also taking a hit. 40% of US universities are reporting a drop in applications. More than a million foreign students come to the US each year and are paying full tuition for the privilege. Guess who benefits the most from that? American students who get more financial aid because foreign kids are subsidizing them.

Some of the drop may be due to more scrutiny at consulates. Some may be due to travel ban and CBP harassment at ports of entry. And some is probably due to people who have simply written off even trying to come to the US either because they’re appalled at the political changes we’ve experienced here or because they would like to come, but assume they’ll be denied a visa or are afraid of what they’ll experience if they try and enter.

This is enormously consequential for many reasons. First, from an economic standpoint, a huge number of jobs are tied to millions of people coming to the US each year. The state of Florida where I grew up, for example, depends enormously on international tourism. US universities are widely considered the world’s best and we are the number one recipient of international students. That is all at stake right now. And when those students choose other countries, they’ll start their businesses in those countries and perform world class research for foreign institutions and companies versus American ones.

Second, the best way to foster good feeling about the US – something that is critical for our foreign policy objectives – is for people to come to the US either as tourists or students – and experience our hospitality and see how wonderful a country the US is. If you want hostile foreign media outlets and unfriendly governments to shape views of the US, just prevent people from coming over here to see for themselves. That’s why it’s puzzling why the State Department – the agency responsible for diplomacy and helping to shape America’s image abroad – is a major part of this problem.

I’m pessimistic we’ll see improvements in the near term. But I’m hoping that once the economic consequences of these policies become more apparent, we’ll start to see the same kind of pushback we’ve seen regarding other immigration policies.

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at gsiskind@visalaw.com.